Ross v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 21 July 2015
• Neutral Citation: [2015] IEHC 484
• Docket Number: [2014 No. 242 JR]
• Court: High Court
• Date: 21 July 2015

BETWEEN

NOEL ROSS AND GARY ROSS

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

[2015] IEHC 484

Noonan J.

[2014 No. 242 JR]

THE HIGH COURT

JUDICIAL REVIEW

Government – Planning & Development – S. 50A(7) of the Planning and Development Act 2000 – Leave to appeal – Issues of exceptional public importance

Facts: The applicants sought leave to appeal to the Court of Appeal against the impugned judgment and order of the Court wherein the applicants had challenged the relevant condition attached to a planning permission granted by the respondent for the retention of a replacement mobile home. The applicants contended that there were three questions of law that needed to be resolved, namely, whether it was permissible for the respondent to restrict or interfere with an existing established use while granting an application for planning permission for the replacement of substantially the same development that had been destroyed by fire or otherwise perished; whether it was permissible to expressly prohibit, restrict or otherwise interfere with the right to alienate the property while granting planning permission in lieu of s. 39 (1) of the Planning and Development Act 2000; and whether there was a requirement to apply for planning permission for replacement of substantially the same development that had been destroyed by a fire in cases where the existing use of land had been established and not extinguished.

Mr. Justice Noonan refused to grant leave to appeal the impugned judgment of the Court to the Court of Appeals. The Court held that the jurisdiction to grant a certificate for leave to appeal must be exercised rarely. The Court pointed out that the cases justifying certification must involve a question of point of law of exceptional public importance transcending the facts of an individual case. The Court held that the requirements of ‘exceptional public importance’ and ‘desirable in public interest’ were cumulative and each must be satisfied separately. The Court found that none of the questions raised by the applicant raised any exceptional issues that needed to be resolved for the common good as there was no evidence to suggest any uncertainty that existed regarding any question.

JUDGMENT of Mr. Justice Noonan delivered on the 21st day of July, 2015.

1 Judgment in this matter was delivered by me on the 23rd of April, 2015 ( [2015] IEHC 256) in which I dismissed the application. The applicants now seek to appeal that judgment and to that end, seek a certificate pursuant to s. 50A(7) of the Planning and Development Act 2000 which provides as follows:

‘The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court, which shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.’

2 Section 75 of the Court of Appeal Act 2014 provides that references to the Supreme Court as in the above section are to be construed as references to the Court of Appeal.

3 The facts of the matter are fully set out in the judgment and need not be repeated here. The applicants have formulated three questions which they say arise from the judgment and constitute points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. These are as follows:

1 Where a dwelling/development is destroyed by fire or otherwise perishes, is it permissible for the respondent board, in granting an application for planning permission allowing for the replacement of substantially the same development, to restrict or interfere with an existing established use?

2 Having regard to s.39 (1) of the Planning and Development Act, which expressly states that planning permission shall ‘inure for the benefit of the land and for the time being all persons interested therein’, is it permissible in the grant of that permission to expressly prohibit, restrict or otherwise interfere with the right to alienate that property in perpetuity or at all?

3 Is there a requirement to apply for planning permission for the replacement of substantially the same development and/or a dwelling which had been destroyed by fire or otherwise perishes, in circumstances where the existing use of the land is established for, in this instance, mobile home use and that use has not been extinguished?

4 The principles to be applied in applications of this nature were distilled by McMenamin J. in his judgment in Glancré Teoranta v. An Bord Pleanála (unreported High Court 13th July 2006) and are as follows:

1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court.

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court.

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.

8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.

9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

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